When Al-Naṣṣ Orders Something Previously Prohibited:

An Appraisal of Methodological Approaches Considering the Opinion of Kamal Al-Dīn Ibn Al-Humām

Shirin Gul

 

Abstract: The subject of imperative (al-amr) and prohibition (al-nahy) constitutes the essence of Shari’ah ruling because it includes the demands and prohibitions of the Lawgiver (al-Shārīʿ) and therefore falls within the section on wordings (al-alfāẓ). Hanafi scholars of methodology of Islamic Jurisprudence (uṣūl al-fiqh) have deemed it appropriate to discuss the wordings under four main headings to understand the meaning and ruling that the wording indicates. The first of these, and directly relevant to our topic, is the wordings in terms of meaning that are placed (waḍʿ), and the ‘specific wordings’ (al-khāṣṣ) discussed under this main heading. For imperatives and prohibitions, they are considered types of ‘specific wording’ within ‘linguistic wordings.’ This article examines the meaning and ruling of the imperative following a prohibition as an important issue related to the matter of imperatives and prohibitions, considering the views of Kamal al-Dīn Ibn al-Humām (861/1456) on this matter. The opinions of scholars of the methodology of Islamic jurisprudence on this matter can be considered in two ways: one opinion argues that an order following a prohibition signifies obligation (al-wujūb), just like an absolute order; and the other opinion argues that it signifies permissibility (al-ibāha). Ibn al-Humām, in his work on Al-taḥrīr fī uṣūl al-fiqh (methodology of Islamic Jurisprudence), stated that the imperative tone following a prohibition only removes the prohibition and restores the commanded action to its previous ruling. This opinion of Ibn al-Humām is a rather practical conclusion because it provides a direct return to the original ruling approved by the majority of mujtahids without needing to seek any external evidence. It also appears consistent and systematic, as it does not contradict the content of al-naṣṣ (the texts of the Qur’an and Sunnah) and the rules of language, logic, and uṣūl al-fiqh. This opinion is also significant because it is independent of the opinions of the mujtahids (jurists and lawmakers) within the Hanafi school to which he belonged. For all these reasons, this article examines Ibn al-Humām’s opinion from a holistic perspective, considering the textual and rational evidence, the consistency of his conclusions, and the criticisms he has levelled against other opinions.